Evidence Flashcards
1
Q
Lay witness
A
- Anyone can be a witness
- Testify as to knowledge/perception (not legal conclusions)
- Must take oath/affirmation
- Judge/juror may not be a witness
Child - yes if can tell truth from lie regardless of age
2
Q
Expert witness
A
- Lay foundation/qualify the expert
- Can use outside evidence
- Can give opinion on conclusion
Crim case: CANNOT give opinion on mental state of defendant if element of crime
3
Q
Control of witness
A
- The court can take steps to keep “reasonable control”
4
Q
Leading questions
A
- Not allowed on direct
- Exceptions:
- Cross
- Hostile witness
- Adverse party
- Shy witness/child
- Jog memory
Lay foundation
5
Q
Refreshing memory/recollection
A
- May show anything to witness
But not read into evidence
6
Q
Witness must not be present in courtroom except
A
- If they are a party
- Statute allows
Needed
7
Q
Judge vs jury roles
A
- Judge: rules of law + admissibility
Jury: questions of fact + weight of evidence
8
Q
Objections and offers of proof
A
- Objection to admission
- Timely
- Grounds for objection
- Offer of proof (of why it should come in)
- Evidence was excluded
Preserves for appeal
- Evidence was excluded
9
Q
Burden of production and persuasion
A
- Burden to produce evidence: Plaintiff/prosecution must prove each element of crime or claim
- Next - Burden of persuasion:
- Civil: preponderance of evidence (51%+)
- Criminal: beyond a reasonable doubt
Defendant has burden to prove defense
10
Q
Presumption
A
- Conclusion the judge must come to once a party meets its burden.
- rebuttable presumption
- If the presumption is rebutted with evidence - the jury MAY conclude
- If the presumption is NOT rebutted – the jury MUST conclude
Conclusive presumption: no rebuttal evidence may be offered
11
Q
Impeachment
A
- Attacking witness “credibility”
- Generally admissible
- Character = defendant VS
Impeachment = WITNESS on the stand
12
Q
Impeachment - Prior felony convictions
A
- Felony within 10 years
Passes balancing test
13
Q
Impeachment - Prior convictions regarding honesty/truthfulness
A
- Felony or misdemeanor
Proved by reputation, opinion, or acts
14
Q
Impeachment - Prior bad acts (not convictions)
A
- In general - inadmissible
- Regarding honesty/truthfulness - admissible
No extrinsic evidence
15
Q
Impeachment - Collateral matter
A
- Not relevant to the case
Cannot be used to impeach
16
Q
Impeachment AND substantive evidence
A
- When the statement is also not hearsay
17
Q
Relevant evidence
A
- Any tendency to make a fact more or less probable
- Generally admissible
- Excluded if:
- Unfairly prejudicial (lie detector test)
- Misleads or confuses the jury
Causes delay
18
Q
Authentication
A
- Must show “the evidence is what it purports to be”
- How:
- Direct testimony
- special markings
Testimony with PERSONAL KNOWLEDGE
19
Q
Self-authenticating
A
- Look for an official/notarized document
- Does NOT require additional testimony
Ex: newspaper, seal, notarized
20
Q
Character evidence
A
- Bad things the DEFENDANT did in the past
- NOT admissible
Too prejudicial
21
Q
Character evidence in CIVIL cases
A
- When character at issue:
- Defamation/libel/slander
- Child custody
- Negligent entrustment/hiring
- Misrepresentation/fraud
Proven by reputation, opinion, and specific acts
22
Q
Character evidence exceptions (admissible)
A
- Admissible if MIMIC
- Motive
- Intent
- Mistake (absence of)
- Identification
- Common plan or scheme (specific)
- Self-defense claim
- D CAN show P was initial aggressor
- Prior acts of child molestation
- Other instances of child molestation are ADMISSIBLE
- Habit evidence
- Routine Practice
Admissible if habit is done all the time. Particular conduct in a general set of circumstances.
- Routine Practice
23
Q
Character evidence in CRIMINAL cases
A
- D OPENS THE DOOR
- D introduces evidence of pertinent trait
Prosecution can rebut evidence of same trait
24
Q
Attorney/client privilege
A
- There must be a RELANTIONSHIP
- Applies to ANYONE who works for the attorney
- Lasts FORVER
- Communication must be CONFIDENTIAL
- Client holds the privilege. Attorney can claim for client.
- Waived voluntarily
- Work product: Generally protected by A/C privilege
- Exceptions:
- Getting advice on how to commit a crime
Dispute between A and C
- Getting advice on how to commit a crime
25
Q
Doctor patient privilege
A
- Statements about treatment or diagnosis
- Others can be present if to assist doctor/patient
- Exceptions:
- Patient puts his condition at issue
Dispute between doctor and patient
- Patient puts his condition at issue
26
Q
Spousal communication privilege
A
- Protects confidential information disclosed during marriage
- Applies:
- Civil or criminal
- Survives divorce
- Either spouse may exert privilege
- Both spouses must waive
- Exceptions:
- Statements about future crimes
Statements about child/spousal abuse
- Statements about future crimes
27
Q
Spousal testimonial privilege
A
- Prevents a spouse from testifying
- CRIMINAL case only
- Must be legally married at trial
- Covers events before/during marriage
- ENDS with divorce
- Witness-spouse holds privilege
- Exceptions:
- Statements about future crimes
Statements about child/spousal abuse
- Statements about future crimes
28
Q
Judicial notice (when, law, jury instruction)
A
- Any evidence not subject to dispute
- No opinions
- Ex: day of the week, it is sunny outside. Not: weather forecast for tomorrow
- Judge MAY - whether requested or not
- Judge MUST - if requested by a party
- MUST - federal or state law
- MAY - foreign law or municipal ordinance
- Jury instructions for judicial notice
- Civil case: jury MUST accept as conclusive
Criminal case: jury MAY accept as conclusive
- Civil case: jury MUST accept as conclusive
29
Q
Subsequent remedial measures
A
- Evidence that something was fixed after an accident
- NOT ADMISSIBLE to show negligence
- Public policy rule
Exception: admissible to show ownership/control
30
Q
Liability insurance
A
- NOT admissible to show negligence
MAY be admissible to show bias
31
Q
Offer to compromise/settle
A
- NOT admissible for public policy
- Must be a dispute between parties
Offer to compromise + admission = the WHOLE statement is NOT admissible
32
Q
Offer to pay medical expenses
A
- NOT admissible
Offer to pay med expenses + admission: only the ADMISSION is admissible
33
Q
Plea negotiations
A
- NOT admissible
- ADMISSIBLE with an admissible statement + FAIR
Ex: no contest, guilty plea later withdrawn, any statement about guilty plea
34
Q
Past sexual conduct of victim
A
- NOT admissible to show other sexual behavior or predisposition
- Exception:
- In CRIMINAL case
○ Shows consent
○ Protects D’s constitutional rights
○ The source of any physical evidence
In a CIVIL case: ONLY if the probative value outweighs the prejudicial effect (reverse 403)
- In CRIMINAL case
35
Q
writing/records/photos
Best Evidence (original document) rule
A
- The best evidence is considered the original
- Does not apply to objects
- Exception: if og item is lost or destroyed, you may use a copy if it is authenticated
- Authentic: no evidence of tampering (facts will tell); start with the premise the document is authentic
- Ex: copy of K or deed from courthouse; Not: deed with sharpie marks
Best evidence rule applies in- To prove the contents of the document. Ex: warranty deed, employment K
To prove the testimony being given. Exception: if other evidence can prove testimony (facts will tell you)
- To prove the contents of the document. Ex: warranty deed, employment K
36
Q
writing/records/photos
Completeness rule
A
When admitting a portion, the whole document may be admitted for fairness (other party may request)
37
Q
Right to confrontation
A
- Right to confront a witness concerning an out-of-court statement depends on if the statement is TESTIMONIAL
- Non-testimonial definition: statements made to police during an emergency – admissible
- Testimonial definition: statement not made during an emergency – not admissible
Physical and demonstrative evidence - Generally admissible
- Ex: show scar, demonstrate limp
Hearsay upon hearsay - Two different statements
Not admissible unless both meet an exception or exemption to the rule
